Citation Nr: 1113992
Decision Date: 04/08/11 Archive Date: 04/15/11
DOCKET NO. 09-36 352 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska
THE ISSUE
Entitlement to service connection for tinnitus.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESSES AT HEARINGS ON APPEAL
Veteran and spouse
ATTORNEY FOR THE BOARD
Christopher McEntee, Counsel
INTRODUCTION
The Veteran had active service from September 1972 to January 1976.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.
FINDING OF FACT
The evidence of record preponderates against the Veteran's claim that he incurred tinnitus during service.
CONCLUSION OF LAW
Tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. § 1131 West 2002); 38 C.F.R. § 3.303 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
In the interest of clarity, the Board will initially discuss whether the claim decided here has been properly developed for appellate purposes. The Board will then address the merits of the claim, providing relevant VA law and regulations, the relevant facts, and an analysis of its decision.
I. Veterans Claims Assistance Act of 2000
The Board must determine whether the claimant has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claim, and whether the claim has been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002).
VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). More specifically, VA is required to notify a claimant of the evidence and information necessary to substantiate a claim and whether the claimant or the VA is expected to provide the evidence, and is required to request from the claimant any other evidence in his or her possession that pertains to the claim. Id.
VA provided the Veteran with a VCAA notification letter in July 2008. 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. In that letter, VA informed the Veteran of the elements of his claim, and of the evidence necessary to substantiate the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA advised the Veteran of the respective duties of the VA and of the Veteran in obtaining evidence needed to substantiate his claim. The Veteran was provided with notification prior to the adverse rating decision on appeal. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2007) (VCAA notice must be provided to a claimant before the initial unfavorable RO decision). And the Veteran's claim was readjudicated in the August 2009 statement of the case (SOC) and in the February and June 2010 supplemental SOCs. See Overton v. Nicholson, 20 Vet. App. 427 (2006) (a timing error may be cured by a new VCAA notification letter followed by a readjudication of the claim).
The VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. The VCAA provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A.
In this matter, the Board finds that VA's duty to assist has been satisfied as well. VA afforded the Veteran the opportunity to appear before one or more hearings to voice his contentions. VA obtained medical records relevant to this appeal. And the RO provided the Veteran with a VA compensation examination.
In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with VA's duties to notify or assist the Veteran in this appeal. Therefore, the Veteran has not been prejudiced as a result of the Board deciding his claim here.
II. The Merits to the Claim for Service Connection
The Veteran claims service connection for tinnitus. He asserts that acoustic trauma he experienced pursuant to his duties as an aircraft mechanic working along flight lines in the U.S. Air Force caused him to incur this disorder.
Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). When a Veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a).
Service connection may be awarded where the evidence shows that a Veteran had a chronic condition in service or during an applicable presumptive period and still has the condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. Certain disorders will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d).
In general, direct service connection under 38 C.F.R. § 3.303 will be granted where the record demonstrates (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999).
In this matter, the evidence sufficiently indicates that the Veteran currently has tinnitus. He has stated repeatedly in the record that he experiences this disorder. His complaints are of probative value because, as a layperson, the Veteran is competent to testify regarding observable symptomatology, such as tinnitus, which is defined as, "[n]oises (ringing, whistling, hissing, roaring, booming, etc.) in the ears." See Stedman's Medical Dictionary 1838 (27 ed. 2000). A ringing noise in the ears is an "observable" symptom. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).
The Board also finds that the record does not preponderate against the Veteran's claim that he was exposed to acoustic trauma during service. The record demonstrates that the Veteran served in the U.S. Air Force as an aircraft mechanic. And again, as a layperson, he is competent to testify regarding noises he may have experienced during service. His statements regarding what he heard and felt during service are of relevance here. See Layno, supra.
The Board will next address whether the Veteran's current tinnitus is related to that acoustic trauma during service. 38 C.F.R. § 3.303. After consideration of the evidence, the Board finds that the preponderance of the evidence indicates that the Veteran's tinnitus does not relate to service. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (to deny a claim on its merits, the evidence must preponderate against the claim).
The Veteran's service treatment records do not note complaints, treatment, or diagnoses of a hearing disorder such as tinnitus. Such a disorder was not noted even though the Veteran's hearing was tested on a number of occasions during service due to his involvement with aircraft. The separation reports of medical examination and history, dated in December 1975, are negative for complaints or problems related to the Veteran's hearing. August 1984 reports of medical examination and history, dated over 8 years after discharge from the air force and conducted pursuant to the Veteran's army reserve duties, are likewise negative for a hearing-related disorder. The earliest medical evidence of record of the Veteran's tinnitus is found in a January 2009 VA compensation examination report of record, over 30 years following active service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is evidence against a claim of service connection). And no medical nexus evidence of record attributes the Veteran's tinnitus to service. See Pond, supra. Rather, the January 2009 VA examiner found the tinnitus unrelated to service. She indicated a review of the claims file, and supported her negative opinion with a rationale, stating that test results indicating normal hearing at separation indicated that tinnitus would not have developed from service. See Kightly v. Brown, 6 Vet. App. 200 (1994) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions).
The Board notes that it has assessed the lay evidence of record to determine whether evidence of a continuity of symptomatology since service has been established. See 38 C.F.R. § 3.303(b). But such evidence has not been established in the record. Initially, in his interview with the January 2009 VA examiner, the Veteran indicated onset of tinnitus in 1975. Similarly, in his January 2010 hearing before the RO, the Veteran testified that he has continuously experienced tinnitus symptoms since service. Moreover, statements from the Veteran's spouse, who indicated that she knew the Veteran prior to and after service, corroborated his claims to a continuity of symptomatology of tinnitus since service. In his hearing before the Board, however, the Veteran testified that he began experiencing tinnitus symptoms 10 years after discharge from service. His statements are therefore inconsistent and unpersuasive. See Caluza v. Brown, 7 Vet. App. 498 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements). The Veteran's comments before the Board are actually consistent with the negative medical evidence (or lack of medical evidence) that indicates an absence of tinnitus for many years following discharge from service in 1976.
In sum, the evidence supports the Veteran's claim to having current tinnitus, and to having experienced acoustic trauma during service. However, service connection is unwarranted here because the objective evidence of record indicates that the Veteran did not experience a chronic tinnitus disorder during service, experience a continuity of symptomatology of a tinnitus disorder following service, or otherwise experience a tinnitus disorder due to service. 38 C.F.R. § 3.303. The preponderance of the evidence indicates that whatever noise exposure the Veteran may have experienced during service is unrelated to his current tinnitus. See Alemany, supra.
As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to service connection for tinnitus is denied.
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John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs